No. 11,780 | Ind. | May 1, 1885
The appellant in the first paragraph of her complaint set forth the following instrument:
“ October 13, 1882.
“ I promise Emily Caviness to give her two thousand dollars at my death to take care of her children with, which she claims of my estate. She has been in my family nineteen years and a faithful servant, and it is my will to her.”
And alleged that it was executed by "William R. Rushton in "his lifetime, and that Rushton died some time after the execution of the instrument, and that the appellee is the administrator of his estate.
We do not think the instrument declared on can be re
The third paragraph of the complaint alleges that the appellant, at the special instance and request of the appellee’s intestate, performed work and labor for him for nineteen years; that “on the 13th day of October, 1882, she had a settlement with William E. Eushton, then in life, for the services by her performed, and the amount found to be due was two thousand dollars, and the said Eushton then agreed to leave her by will the sum so found due her for services, and executed to her a written agreement.” The written agreement set forth in this paragraph is the same as that set out in the first paragraph. It is also alleged that Eushton died! without a will.
We are unable to perceive any infirmity in this paragraph of the complaint. A promise supported by a valuable consideration is well pleaded, and the case is, therefore, unlike that of a voluntary promise to make a gift. The services were rendered in accordance with a precedent request, and, after they were performed, a settlement was had and their value agreed upon. Not only were all the elements of a valid contract present, but there was a full recognition, by the settlement, of the right to compensation and an agreement as to
The manner in which the intestate promised to make the payment can not deprive the appellant of her right to recover the value of the services rendered by her at his precedent request. The only difference between this case and that of an ordinary promise to pay for services is in the stipulation as to the time and manner of making payment. A promise, founded upon a valuable consideration, to make provision by will, is a valid contract, ánd an action will lie for its breach. An English author says: “ It is well established that a man may validly bind himself or his estate by a contract to make ■any particular disposition (if in itself lawful) by his own will.” Pollock Princ. of Cont., section 308. This is the doctrine of this court. Bell v. Hewitt, 24 Ind. 280" court="Ind." date_filed="1865-05-15" href="https://app.midpage.ai/document/bell-v-hewitts-executors-7036851?utm_source=webapp" opinion_id="7036851">24 Ind. 280.
The case in hand is plainly distinguishable from Moore v. Stephens, 97 Ind. 271" court="Ind." date_filed="1884-09-19" href="https://app.midpage.ai/document/moore-v-stephens-7047289?utm_source=webapp" opinion_id="7047289">97 Ind. 271, for here there was a valuable consideration, a precedent request, and an express contract; while in the case cited there was no valid contract, but simply an ineffectual attempt to make a testamentary disposition of property.
It was proper to show the consideration of the intestate’s promise, and when it was shown to be a valuable one, yielded upon a precedent request, a cause of action appeared. It was not necessary that the consideration should affirmatively appear in the written instrument; it was sufficient to show that there was a precedent request, and that the services were performed pursuant to this request. These facts make it appear ■that there was a valid contract, and not a mere voluntary promise to make a testamentary gift. If there had been no ■consideration for the promise, or if it appeared that the promise was simply to make a gift, then, of course, no action could be maintained.
The second and third paragraphs are not the same, for the former does not aver that there was a settlement and an amount agreed upon, but is simply a common count for services rendered. It is only where the two paragraphs clearly appear ■to be founded upon one and the same cause of action, and where the one requires no greater or different evidence than the other, that it is harmless error to sustain a demurrer to one of them, for it has long been the rule of this court that •a party may state his cause of action in different forms. Snyder v. Snyder, 25 Ind. 399" court="Ind." date_filed="1865-11-15" href="https://app.midpage.ai/document/snyder-v-snyder-7037028?utm_source=webapp" opinion_id="7037028">25 Ind. 399; Stearns v. Dubois, 55 Ind. 257" court="Ind." date_filed="1876-11-15" href="https://app.midpage.ai/document/stearns-v-dubois-7041495?utm_source=webapp" opinion_id="7041495">55 Ind. 257.
For the error in sustaining the demurrer to the third paragraph of the complaint the judgment must be reversed.